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New Justice Gorsuch renders first opinion in ruling
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American Towman Magazine Presents the Week in TowingJune 21 - June 27, 2017
Supreme Court Justice Neil Gorsuch. — image.

Debt Buyers Win [b]Creditor Status

In the first opinion authored by newcomer Justice Neil Gorsuch, the Supreme Court ruled that a bank's collections group didn't skirt the law while collecting on delinquent car notes because it qualifies as a creditor, not a debt collector, after buying the loans.

At issue is the question of whether Santander Consumer USA qualifies as a "debt collector," which would make it subject to the terms of the Fair Debt Collection Practices Act, or a "creditor," which would render it immune from the act's constraints.

Though Santander considers itself a creditor, it faced a class action because it bought a portfolio of auto loans from CitiFinancial, a qualified debt collector subject to the FDCPA.

In his first opinion for the high court since being confirmed in April, Gorsuch narrowed the underlying question: "Does the Act treat the debt purchaser ... more like the repo man or the loan originator?"

"All that matters is whether the target of the lawsuit regularly seeks to collect debts for its own account or does so for 'another,' " Gorsuch wrote. "And given that, it would seem a debt purchaser like Santander may indeed collect debts for its own account without triggering the statutory definition in dispute."

The Supreme Court's decision hinged on the fact that the FDCPA defines debt collectors as those who regularly try to collect debts "owed [to] another."

"For while the statute surely excludes from the debt collector definition certain persons who acquire a debt before default, it doesn't necessarily follow that the definition must include anyone who regularly collects debts acquired after default," the opinion states. "After all and again, under the definition at issue before us you have to attempt to collect debts owed another before you can ever qualify as a debt collector."

The plaintiffs in the case argued that if Congress had been aware of defaulted debt buyers like Santander when it enacted the law, it would have treated them like traditional debt collectors.

Gorsuch rejected the argument and took the opportunity to explain the court's role.

"While it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone's account, it never faced," he wrote.


Two Arrested in [b]Repo Clash

A dispute between a repo agent and the vehicle's owner involved an argument, a threat, and shots fired at a residence in Miami County, Ohio.

Detectives later executed a search warrant on the home where the owner, 34-year-old, Matt Naff, was arrested and jailed. The repo agent was arrested and booked into jail as well.

Both are charged with one count each of felonious assault, according to a police report. Deputies recovered two handguns, ammunition and spent bullet casings; no one was shot during the dispute, according to deputies.


Repos Follow [b]Dealer's Delinquency

The Licking County (Ohio) Sheriff's Office is investigating a Pataskala car lot after customers reported buying cars that were later repossessed, sometimes after having been paid for in full.

Remak Auto Sales now appears to be closed and the company's website has been taken down.

One customer told a local TV station that she bought a 2006 Ford Fusion from Remak in May for $2,200, paid $1,800 in cash, and agreed to pay the remaining $599 within 30 days.

"And then on the morning of June 13th, I wake up and my car is gone. So, I thought initially someone stole my vehicle. Being repossessed was the last thing I ever thought of," she said.

She said she immediately tried to reach Remak without success. After doing her own detective work, she tracked the repo men to an auto auction in Crooksville where Remak got the cars it sold. The auction house told her that they repossessed the cars because Remak never paid for them.

So many customers' cars have been repossessed, the Licking County Sheriff has opened a criminal investigation. The Ohio Attorney General is encouraging victims to file a complaint as promptly as possible with as much information as possible. The Title Defect Rescission Fund could help purchasers if the dealership failed to provide a title.


Woman Shoots [b]Repo Truck's Tire

A car repo in Middleburg, Fla., ended with at least one shot fired. The Clay County Sheriff's Office was called after a repo agent went to a home to repossess a vehicle, and someone who was in the home fired at his vehicle.

The victim told investigators he had the repossessed vehicle already loaded on his tow truck, when the car's owner came out. The owner took her belongings from the car and went back in the home.

Then 57-year-old Ginger Westmoreland came outside. The victim says Westmoreland got a firearm out of her vehicle and approached the repo man's vehicle, while threatening him. The arrest report says Westmoreland fired at least one shot, hitting the repo man's tire.

She has been arrested for two felony counts: shooting into a vehicle and aggravated assault with a deadly weapon.

Prison Time for [b]Shooting at Agents

A Harrisburg, Pa., woman has been ordered to serve 5 to 10 years in state prison for firing a gun as two people tried to repossess her van.

Stephanie Hernandez, 28, was sentenced after pleading guilty to counts of aggravated assault, heroin possession, receiving a stolen handgun, and drug paraphernalia.

Prosecutors say that in November 2015 she fired a shot that struck the van as a man and woman were repossessing it.

Officers who responded to the incident at Hernandez's home found her in possession of a loaded stolen 9mm handgun and about 30 baggies of heroin.


Felony Assault Charges for Debtor

The Indian River County (Fla.) Sheriff's Office received a call from two repo agents in Vero Beach about a man with a gun during a repo.

David John Brandes, 54, removed the weapon from his right front pocket and dropped it into the bed of a white truck as deputies arrived at his Vero Beach residence.

The 9mm handgun was found with one round in the chamber and six rounds in the magazine.

As the vehicle was attached to the tow truck, Brandes allegedly came out of the house and jumped on the vehicle they were towing. One agent saw what appeared to be a gun in Brandes' right pocket.

One of the agents said Brandes was acting wild and never took his hand out of his pocket where he saw the outline of the gun.

Brandes said he saw the repo company taking his car away. He admitted to jumping on top of the car being towed to stop them from leaving.

When asked about his verbal threats, Brandes said, "I said I was going to fire at them, but not shoot them." Brandes was arrested for felony aggravated assault with a deadly weapon.

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